|September 16, 2013|
Previously published on September 11, 2013
In <i>Johnson v. Montoya</i>, 2013 UT App 199 (Aug. 8, 2013), the Utah court of appeals denied the defendant’s motion for a new trial, rejecting her argument that the trial court abused its discretion in permitting certain expert testimony. The case arose as the result of an automobile collision involving Montoya and Johnson, where Johnson was driving a tractor-trailer. During the trial, a vocational expert appeared on behalf of Johnson and testified that the extent of Johnson’s injuries shortened her work life and decreased her future earning capacity by at least 50% and by as much as 69%. An economic expert also testified for Johnson, opining that Johnson’s future earnings and benefits would have been $1.2 million if the collision had not occurred, and reduced that number by roughly half based on the vocational experts’ testimony. The jury found Montoya negligent and awarded Johnson $475,725.16 in damages.
In her appeal, Montoya argued that because the vocational expert “never testified that her methodology was subject to peer review, and never addressed whether there was any known potential rate of error,” her methodology “lacked the foundational requirements to ensure that her opinions had a reasonable degree of certainty.” The Utah court of appeals disagreed, ruling that Utah Rules of Evidence do not require expert testimony to exhibit a “reasonable degree of certainty” to be admissible but only a “threshold showing” of reliability.
Montoya next argued that the vocational expert “relied upon non-existent facts for her foundation when testifying that Johnson would have a shortened work life and that her lost earning capacity would be reduced by 50% to 69%.” One of Montoya’s specific arguments was that the statistics relied upon by the vocational expert were too general to be reliably applied to the facts of this case because the statistics provided by the American Community Survey and Current Population Survey are calculated at a national level and include people with a large range of functional abilities and injuries. In support of her argument, Montoya cited State v. Barzee, 2007 UT 95, where Chief Justice Durham stated: “I am persuaded that the State witnesses lacked adequate foundation for their opinions in many respects, including a reliance on general statistics rather than statistics particular to the defendant.” The court of appeals disagreed, noting that the majority in State v. Barzee concluded that because the State’s experts used general statistics in combination with their own first-hand knowledge to support their conclusions, the testimony was admissible. The court of appeals then ruled that the vocational expert in the case at hand did not rely on general statistics in isolation. Thus, that the trial court did not abuse its discretion when it found that there were sufficient “indicia of reliability” to make a threshold showing that the expert’s methodology was reliably applied to the facts.
Lastly, the court of appeals rejected Montoya’s argument that the economic expert’s testimony was also admitted in error because it was based in part on the conclusions of the vocational expert, ruling that because the vocational expert’s testimony was not admitted in error, the economic expert’s testimony was also not admitted in error.